Elon vs. Trump: A Closer Look at the First Amendment Case

Explore Elon's defense in the recent First Amendment case, highlighting the key arguments and contradictions to the First Amendment.

June 8, 2023

In a recent defense brief, Twitter, under the leadership of Elon Musk, argues against the notion that it should be considered a state actor, which is a key element in the First Amendment claim brought against it by Donald Trump and others. The defense maintains that the new materials provided by the plaintiffs do not demonstrate state action, nor do they show that the alleged constitutional deprivation was caused by the exercise of some right or privilege created by the State or by a person for whom the State is responsible.

The defense also argues that the party charged with the deprivation, in this case Twitter, cannot fairly be said to be a state actor. They further argue that the new materials do not support the first prong of the Lugar test, which requires a “clear,” government-imposed rule. According to the defense, the new materials contain only a “grab-bag” of communications about varied topics, none establishing a state-imposed rule responsible for Plaintiffs’ challenged content-moderation decisions.

The defense also argues that a rule of conduct is imposed by the state only if backed by the force of law, such as a statute or regulation. They state that nothing in the new materials suggests any statute or regulation dictating or authorizing Twitter’s content-moderation decisions with respect to Plaintiffs’ accounts.

Furthermore, the defense argues that the new materials do not support an inference of state action in Twitter’s suspension of Trump’s account. They state that certain Twitter employees initially determined that Trump’s January 2021 Tweets, for which his account was ultimately suspended, did not violate Twitter’s policy against inciting violence.

Lastly, the defense argues that general calls from the Biden administration to address alleged COVID-19 misinformation do not support a plausible inference of state action in Twitter’s suspensions of Cuadros’s and Root’s accounts. They state that most of the relevant communications date from Spring 2021 or later, after Cuadros and Roots’ suspensions in 2020 and early 2021, respectively.


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